Construction – Real Estate & Construction Lawhttps://www.csrealconblog.com
Tue, 19 Feb 2019 17:06:54 +0000en-UShourly1https://wordpress.org/?v=4.9.10https://realestateandconstructionlawmonitor.lexblogplatform.com/wp-content/uploads/sites/53/2016/04/cropped-favicon-10.46.56-AM-32x32.pngConstruction – Real Estate & Construction Lawhttps://www.csrealconblog.com
3232New Jersey Court Rejects Zoning Board’s Issuance of a Variance That Discriminates Against Tenantshttps://www.csrealconblog.com/2019/02/articles/construction/land-use-and-development/new-jersey-court-rejects-zoning-boards-issuance-variance-discriminates-tenants/
https://www.csrealconblog.com/2019/02/articles/construction/land-use-and-development/new-jersey-court-rejects-zoning-boards-issuance-variance-discriminates-tenants/#respondTue, 19 Feb 2019 17:06:30 +0000https://www.csrealconblog.com/?p=2024The Appellate Division has once again confirmed that “distinctions between renters or property owners in the application of zoning and land use laws have no place in the application of legitimate objectives of zoning.”

In Tirpak v. Bor. of Point Pleasant Beach, A-5088-17T1/A-5147-17T1, decided Feb. 11, 2019, the property owner sought to remove a deed restriction imposed as a condition in connection with an earlier use variance. The restriction allowed for the use of the property as a two-family residence only if one of the units was owner-occupied. The trial court vacated the condition after finding it legally impermissible and the municipality subsequently challenged that determination.

On appeal, the court confirmed that it was improper for the zoning board to condition its grant of a use variance on whether the residence was occupied by an owner or tenants. In so doing, the court recognized the well-established principle that while zoning may be utilized to regulate the usage of property it cannot be applied to control the identity or status of the persons occupying the land. SeeDeFelice v. Point Pleasant Beach Bd. Of Adj., 216 N.J. Super. 377 (App. Div 1987) and United Property Owners Ass’n of Belmar v. Borough of Belmar, 185 N.J. Super. 163, 165 (App Div. 1982)). While the Zoning Board argued that the condition furthered the legitimate objectives of controlling noise and nuisance conditions, the court held that such objectives must be achieved through the police powers of the municipality, not its zoning laws.

In sum, a municipality may not employ its zoning laws in a manner that favors property owners and discriminates against tenants.

]]>https://www.csrealconblog.com/2019/02/articles/construction/land-use-and-development/new-jersey-court-rejects-zoning-boards-issuance-variance-discriminates-tenants/feed/0New York Court of Appeals Clarifies When a Contractor Hired by a Commercial Tenant Can File a Mechanic’s Lien Against the Owner’s Interest in the Propertyhttps://www.csrealconblog.com/2019/02/articles/construction/new-york-court-appeals-clarifies-contractor-hired-commercial-tenant-can-file-mechanics-lien-owners-interest-property/
https://www.csrealconblog.com/2019/02/articles/construction/new-york-court-appeals-clarifies-contractor-hired-commercial-tenant-can-file-mechanics-lien-owners-interest-property/#respondThu, 14 Feb 2019 21:31:33 +0000https://www.csrealconblog.com/?p=2021When a contractor is hired by a commercial tenant to improve the leased property, the contractor’s lien will ordinarily attach only to the leasehold interest, and not the property itself. In a recent Court of Appeals decision, however, the Court clarified in what circumstances the contractor can file a lien against the owner’s interest in the property. Ferrara v. Peaches Café, 32 N.Y.3d 348 (Nov. 20, 2018).

In Ferrara, the tenant leased the commercial property for purposes of operating a restaurant, and its lease agreement with the owner contemplated that the tenant would build-out the space for purposes of operating the restaurant. After allegedly not being paid for work performed, the tenant’s electrical contractor filed a mechanic’s lien naming the owner, and sought to foreclose on the owner’s interest in the property.

Lien Law § 3 provides that the owner must have requested or consented to the work in order for a mechanic’s lien to attach to its interest. Because the owner had no direct dealings with the contractor, and did not “expressly” or “directly” consent to the work, the owner argued that the lien was unenforceable against it.

The court rejected the owner’s argument and held that the owner need not have expressly consented to the particular work at issue, nor had any direct dealings with the contractor, for the lien to attach to the owner’s interest in the property. Rather, “the owner must either be an affirmative factor in procuring the improvement to be made or having possession and control of the premises assent to the improvement in the expectation that he will reap the benefit of it.”

To determine whether the owner’s interest can be subject to a lien, the terms of the lease agreement are important. In particular, where the lease agreement requires the tenant to make certain improvements, the owner will be deemed to have consented to those improvements. The Court contrasted its prior decision in Rice v. Culver, 172 N.Y. 60 (1902) where the lease agreement, at best, merely authorized the tenant to make certain improvements. There, the tenant leased the property to build and maintain an athletic field, and was given the general right to construct and improve buildings upon the land. While the owner “must have known” that the tenant intended to make improvements upon the land, that general knowledge was insufficient to show that the owner consented to the specific work in issue which resulted in the filing of a mechanic’s lien.

The Ferrara Court found that the lease agreement evinced owner’s consent to the work. The lease agreement “not only expressly authorized [the tenant] to undertake the electrical work, but also required it to do so to effectuate the purpose of the lease[.]” Further, the lease provided that owner was “to retain close supervision over the work” and permitted owner to “review[], comment[] on, revise and granted ultimate approval for the design drawings related to the electrical work.”

Although the Court did not look to the parties’ course of conduct, it noted that consent need not be founded on the lease agreement alone. Consent can also be founded on the “owner’s overall course of conduct and the nature of the relationship between the owner and the lienor[.]”

Ferrara makes clear that an owner cannot insulate itself from liens on their real estate solely because it does not have direct dealings with the lienor. Where the lease requires certain improvements, and a lien is filed as a result of such improvements, the owner faces liability under the lien law despite having no direct dealings or even knowledge of the particular lienor’s work.

]]>https://www.csrealconblog.com/2019/02/articles/construction/new-york-court-appeals-clarifies-contractor-hired-commercial-tenant-can-file-mechanics-lien-owners-interest-property/feed/0Zoning Boards Are Not Free to Disregard Prior Rulings Where Property Conditions Remain Unchangedhttps://www.csrealconblog.com/2019/01/articles/construction/land-use-and-development/zoning-boards-not-free-disregard-prior-rulings-property-conditions-remain-unchanged/
https://www.csrealconblog.com/2019/01/articles/construction/land-use-and-development/zoning-boards-not-free-disregard-prior-rulings-property-conditions-remain-unchanged/#respondThu, 17 Jan 2019 16:22:51 +0000https://www.csrealconblog.com/?p=2014In a recent unpublished decision, the Appellate Division again confirmed that a zoning board may not reverse course without justification once it has made findings regarding a specific property.

In Oster v. Zoning Board of Adjustment of the Township of Middletown (Docket No. A-0037-17T3, decided January 11, 2019), the applicant sought and obtained a hardship variance from the Zoning Board (the “Board”) pursuant to N.J.S.A. 40:55D-70(c)(1). The variance, which was obtained in 2009, permitted construction of an underground storage area and above-ground conservatory within the side yard setback. The Board concluded that a variance was warranted because of the construction difficulties posed by the property’s unique shape, irregular configuration and use as a vineyard.

In 2016, the applicant abandoned the original development plan approved by the Board and filed an application seeking a variance to build an underground storage area/garage with a peaked roof in the same location. The Board, however, disregarded its prior 2009 ruling concerning the property’s unique characteristics (even though the property’s shape and use remained unchanged) and denied the requested variance relief. The applicant subsequently challenged the decision in a prerogative writ action, but the trial court sided with the Board.

The Appellate Division reversed after finding that the Board was required to honor its prior ruling concerning the property’s unique character. The court held that the doctrine of collateral estoppel bars a zoning board from re-litigating any issue that was actually determined by it during a prior application. Consequently, the court instructed the Board to conduct further proceedings on the sole issue of whether the applicant had satisfied the other requirements for c(1) variance relief.

This decision underscores the importance of reviewing all prior land use applications and decisions when pursuing or objecting to variance relief for any given property.

]]>https://www.csrealconblog.com/2019/01/articles/construction/land-use-and-development/zoning-boards-not-free-disregard-prior-rulings-property-conditions-remain-unchanged/feed/0The Local Property Tax Appeal Filing Deadline Remains Inviolate and Cannot be Circumvented by Use of the Intervention Toolhttps://www.csrealconblog.com/2019/01/articles/real-estate/tax/local-property-tax-appeal-filing-deadline-remains-inviolate-cannot-circumvented-use-intervention-tool/
https://www.csrealconblog.com/2019/01/articles/real-estate/tax/local-property-tax-appeal-filing-deadline-remains-inviolate-cannot-circumvented-use-intervention-tool/#respondWed, 16 Jan 2019 16:45:21 +0000https://www.csrealconblog.com/?p=2007In Farmland Dairies, Inc. v. Borough of Wallington, N.J. Super. App. Div. (per curiam) (unpublished decision) (35-2-7909), the Appellate Division upheld the decision of the Tax Court in denying an unrelated neighboring property owner’s efforts at intervening in a pending local property tax appeal between the property owner and the Borough. The court concluded that the intervention application of the putative intervenor was out of time and barred by the statute of limitations. Although all residents of municipalities have standing and maintain the right to pursue tax appeals as “aggrieved” parties under the statute, including those related to their neighbor’s properties, any such contests must nonetheless comply with the statutory filing deadline.

The New Jersey Supreme Court has consistently recognized the necessity of complying with filing deadlines in the area of taxation. The statutory scheme establishing the court’s jurisdiction in this area is “one with which continuing strict and unerring compliance must be observed.” SeeMcMahon v. City of Newark, 195 N.J. 526, 546 (2008). Indeed, our Supreme Court has declared that the “failure to file a timely appeal is a fatal jurisdictional defect.” F.M.C. Stores v. Borough of Morris Plains, 100 N.J. 418, 425 (1985). The Supreme Court has also explained that strict adherence to statutory filing deadlines is of particular concern in tax matters, given “the exigencies of taxation and the administration of local government.” F.M.C. Stores, 100 N.J. at 424. The Legislature “has attempted to set out a well-organized time-table for the purpose of enabling a municipality to ascertain the amount of taxable ratables within the jurisdiction in order that it might adopt a responsible and fairly accurate budget.” Id. at 425. “By incorporating a strict deadline in [the statute], the Legislature intended to ensure that municipalities receive timely notice that a particular property’s valuation is subject to challenge.” Prime Accounting Dept. v. Township of Carney’s Point, 2013 N.J. Lexis at *31.

After previously remanding the matter to the Tax Court for further proceedings concerning the timeliness and propriety of the putative intervenor’s application for permissive intervention, the Appellate Division made it plain, mindful of the above-referenced well-settled jurisprudence, that any effort to intervene must, in the first instance, be timely pursued and that the annual tax appeal filing deadline will effectively wait for no one.

Although as demonstrated above, the inviolate nature of this statutory deadline is plain, the court’s decision here may have been made easier by the attendant distasteful nature of a case involving an unrelated party’s efforts at meddling with pending litigation between the real parties in interest (the actual owner of the property in question and the municipality).

]]>https://www.csrealconblog.com/2019/01/articles/real-estate/tax/local-property-tax-appeal-filing-deadline-remains-inviolate-cannot-circumvented-use-intervention-tool/feed/0Execute Your NJ Construction Lien Properly or Face Forfeiturehttps://www.csrealconblog.com/2019/01/articles/construction/execute-nj-construction-lien-properly-face-forfeiture/
https://www.csrealconblog.com/2019/01/articles/construction/execute-nj-construction-lien-properly-face-forfeiture/#respondTue, 08 Jan 2019 15:30:24 +0000https://www.csrealconblog.com/?p=2001New Jersey’s Appellate Division has once again served a stark reminder to prospective construction lien claimants regarding who may validly sign a construction lien claim. The consequences of failing to properly execute a construction lien claim are dire – not only because the lien claim is subject to discharge, but along with that discharge may come an order requiring the payment of the attorneys’ fees and costs of the party making application for such discharge.

In Diamond Beach, LLC v. March Associates, Inc., Docket No. A-1704-17T1 (N.J. App. Div. December 24, 2018) (approved for publication), the court determined that the 2011 revisions to the Construction Lien Law did not serve to clarify or limit the then-existing construction lien signatory requirements, and therefore the 2011 revisions did not apply retroactively to lien claims filed prior to 2011. Before the 2011 revisions, Lien Law Section 6 explicitly required that a lien be executed by a corporation’s “duly authorized officer.” The 2011 revisions to Section 6 removed the “duly authorized officer” language, and instead stated that the lien claim form, provided in Section 8, “be signed, acknowledged and verified by oath of the claimant[.]” The form in Section 8, however, requires that an “officer/member” sign the form, and the suggested notary form provides that the notary be satisfied that the signatory is the “Secretary (or other officer/manager/agent) of the Corporation (partnership or limited liability company)” with “authority to act on behalf of the Corporation (partnership or limited liability company) and who, by virtue of its Bylaws, or Resolution of its Board of Directors (or partnership or operating agreement) executed the [lien claim] on its behalf.”

The trial court in Diamond Beach had ordered that the subject lien claim be discharged because it had been signed by the subcontractor lien claimant’s Accounting & Information Systems Manager, and there was insufficient evidence to support the claimant’s contention that that manager had been expressly authorized to execute lien claims by the claimant’s Board of Directors. Thus, the court found, under the pre-2011 Lien Law, that the lien claim had not been executed by a “duly authorized officer” of the lien claimant. The trial court further awarded attorneys’ fees to the project owner, which had sought the discharge of the lien. The Appellate Division affirmed the trial court’s determinations, including the award of fees, reading broadly Lien Law Section 15’s language regarding the circumstances under which lien rights are forfeited and an affected party is entitled to a fee award for obtaining such a determination.

Even under the post-2011 Lien Law, the court signaled that the results would have been the same for essentially the same reasons. In last year’s published decision, NRG REMA LLC v. Creative Environmental Solutions Corp., 454 N.J. Super. 578 (App. Div.), certif. denied, 234 N.J. 577 (2018), the court conducted much the same analysis under the current law, and held a lien claim unenforceable that had been signed by the claimant’s “financial director” without any written evidence presented that such “financial director” was a corporate officer or designated by the Board of Directors to execute such documents on behalf of the claimant. In doing so, the court noted that the Lien Law’s “procedural requirements were intended to be stringently applied.”

The critical lesson from the foregoing cases is that any business entity, however formed, that seeks to file a New Jersey construction lien claim, must ensure that the person signing that lien claim, is authorized to do so by the governing documents of that business entity – or by a written resolution or authorization duly executed by the appropriate board, officer, member or partner of that business entity – as that entity’s business form dictates. The failure to have a properly-authorized individual execute the lien claim will, if challenged, prove fatal to the lien claim and extremely costly to the lien claimant.

]]>https://www.csrealconblog.com/2019/01/articles/construction/execute-nj-construction-lien-properly-face-forfeiture/feed/0Excess or Primary Insurance? Make Sure Your Contract Specifies.https://www.csrealconblog.com/2019/01/articles/real-estate/insurance/excess-primary-insurance-make-sure-contract-specifies/
https://www.csrealconblog.com/2019/01/articles/real-estate/insurance/excess-primary-insurance-make-sure-contract-specifies/#respondWed, 02 Jan 2019 15:45:08 +0000https://www.csrealconblog.com/?p=1999A New Jersey appellate court ruled in Lopez v. Palin Enterprises, Associated, No. A-0886-17T4 (N.J. App. Div. December 5, 2018) that a tenant’s insurance policy was not the primary coverage for an injury to its employee which occurred within its leased premises.

The defendant in the case, Palin Enterprises, Associated (“Palin”) owned a commercial building and leased a portion of it to Agile Trade-Show Furnishings, Inc. (“Agile”). Agile employed the plaintiff, Teodoro Lopez (“Lopez”). Lopez was injured using a freight elevator located within the leased premises and sued Palin for damages. Palin tendered the defense to Agile’s insurance company, Wausau Insurance (“Wausau”), arguing that the Wausau policy was the primary insurance coverage for Lopez’s claim. Palin was named as an additional insured under the Wausau policy. The Wausau policy provided “[t]his insurance shall be excess over any other insurance available to the additional insured whether such insurance is on an excess, contingent or primary basis, unless you are obligated under a written agreement to provide liability insurance for that additional insured on any other basis. In that event, this policy will apply solely on the basis required by such written agreement.”

The lease between Palin and Agile required Agile to procure “a comprehensive policy of liability insurance protecting [Palin] . . . against any liability whatsoever, occasioned by any occurrence on or about the Demised Premises.” The lease did not require such policy to be the primary liability coverage for such occurrences. The Court found that Wausau was not required to defend the Lopez lawsuit as its coverage is not to all claims, only as to all liability. The Court ruled that due to the failure of the lease to specify that Agile’s liability insurance policy must be primary, per the terms of the Wausau policy it provides excess coverage and Palin’s liability insurance policy provides the primary coverage.

This case underscores the necessity of carefully drafting indemnity and insurance provisions in contracts to properly allocate risks between the parties thereto, specify the types of insurance each party must carry to cover such risks, and designate the insurance which is primary or excess.

]]>https://www.csrealconblog.com/2019/01/articles/real-estate/insurance/excess-primary-insurance-make-sure-contract-specifies/feed/0The “Time Of Application” Rule Will Not Protect Developers Who Submit Incomplete Applications.https://www.csrealconblog.com/2018/08/articles/construction/land-use-and-development/time-application-rule-will-not-protect-developers-submit-incomplete-applications/
https://www.csrealconblog.com/2018/08/articles/construction/land-use-and-development/time-application-rule-will-not-protect-developers-submit-incomplete-applications/#respondTue, 28 Aug 2018 14:43:23 +0000https://www.csrealconblog.com/?p=1995Developers often employ the “time of application” rule (“TOA Rule”) to avoid having to comply with certain legal requirements enacted after an application has been submitted to a local planning or zoning board. More specifically, the TOA Rule provides that “notwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application….” SeeN.J.S.A. 40:55D-10.5 (emphasis added). Notwithstanding this statutory provision, developers must still comply with any new laws that specifically relate to health and public safety.

The TOA Rule replaced the “time of decision” rule, which allowed municipalities to apply new or amended ordinances to pending development applications. As a result, applicants were often compelled to incur significant costs and delays associated with altering their applications in an effort to meet the new legal requirements. The TOA Rule only applies, however, once a development application has been “submitted” to a municipality. Until that time, a developer remains responsible for complying with all legal requirements regardless of when they took effect.

While the term “submission” is not expressly defined under the statute, the New Jersey Supreme Court squarely addressed the issue in Dunbar Homes, Inc. v. Zoning Board of Adjustment of Franklin Township, 233 N.J. 546 (2018). In Dunbar Homes, the developer filed an application to construct 55 garden apartments on a site where garden apartments were considered a permitted conditional use. The next day, the Township enacted an ordinance that prohibited garden apartments in the zone where the site was located. The zoning official subsequently determined that the developer had not submitted all documents required by the zoning board’s development application checklist. The developer was then notified that the TOA Rule was inapplicable and that it would need to file a new application with the zoning board seeking a “use” variance pursuant to the more stringent standards implicated by N.J.S.A. 40:55D-70(d)(1).

The zoning board sided with the zoning official and the developer appealed to the Law Division. The Law Division judge disagreed and concluded that the application was deemed “submitted” because it provided the board with “sufficient information to begin its review” and, therefore, the TOA Rule applied. The Township appealed and the Appellate Division reversed that decision after finding that the relevant statute defining the term “application for development” included all documents prescribed by the board’s checklist for development. Applying this bright-line rule, the Appellate Division concluded that the failure to submit even one of the items on the board’s checklist precluded application of the TOA rule. The Supreme Court ultimately agreed with the Appellate Division, noting that N.J.S.A. 40:55D-3 expressly defined an “application for development” to include: “the application form and all accompanying documents required by ordinance.” Because it was undisputed that the developer failed to submit all required documentation and neither sought nor obtained a waiver regarding any requirements, the Court found that the application was never submitted and the TOA Rule did not apply.

Accordingly, developers must be certain to submit all documents identified in the municipal development application checklist or seek and obtain a waiver. Only by vigorously complying with the requirements of the municipal checklist can a developer expect to avail itself of the protections afforded by the TOA Rule.

]]>https://www.csrealconblog.com/2018/08/articles/construction/land-use-and-development/time-application-rule-will-not-protect-developers-submit-incomplete-applications/feed/0Rights, Remedies and Procedures for Addressing Construction Defect Claims in Floridahttps://www.csrealconblog.com/2018/08/articles/construction/rights-remedies-procedures-addressing-construction-defect-claims-florida/
https://www.csrealconblog.com/2018/08/articles/construction/rights-remedies-procedures-addressing-construction-defect-claims-florida/#respondThu, 16 Aug 2018 13:44:43 +0000https://www.csrealconblog.com/?p=1977Florida has implemented a rather simple statutory scheme to address claims that a real property owner believes she may have against a contractor, subcontractor, supplier or design professional for construction defects on her property—whether those defects involve construction, repairs, remodeling or alterations to the property. The law, Florida StatutesSections 558.001-005, attempts to strike a balance between protecting the rights of property owners and reducing the litigation associated with such claims.

In a nutshell, before a property owner files a lawsuit in court or a demand for arbitration, to the extent arbitration is required, she must first, at least 60 days (120 days if the action involves an association that represents more than 20 parcels) prior to filing that lawsuit or demand for arbitration, serve a written notice of her claim on the contractor, subcontractor, supplier or design professional whom she claims is responsible for the defects. Defects encompass a number of different deficiencies arising from defective materials, components and products; violations of applicable codes; failure of a design professional to comply with applicable standards; or a failure to build or remodel property consistent with accepted trade standards.

The 60-day pre-suit notice must describe in detail each and every construction defect that the owner believes exists, as well as all known damages resulting from the defects and the location of each defect. Within 30 days of service of the owner’s notice of claim, the contractor, subcontractor, supplier or design professional to whom the notice is directed is entitled to inspect the property in order to assess each defect. If the contractor, subcontractor, supplier or design professional determines that destructive testing is necessary to determine the nature of the alleged defects and what caused those defects, there are certain other notice rights and obligations associated with that destructive testing, including the right of the owner to object under Florida Statutes Sec. 558.004.

Within 45 days after service of the property owner’s notice of claim, the contractor, subcontractor, supplier or design professional served with that notice is required to serve a written response which must provide for one of the following:

an offer to remedy the defect, at no cost to the owner, with a detailed description of the necessary repairs and the timetable for completion;

an offer to settle the claim by a payment of money;

a hybrid, for lack of a better term, offer to settle the claim by a combination of repairs and a monetary payment, with, again a description of the required repairs and the timetable to complete those repairs;

a statement that the claim is disputed and that there will be no attempt to remedy the alleged defect or settle the claim;

a statement that any monetary payment will be determined by the contractor’s, subcontractor’s, supplier’s or design professional’s insurance company within 30 days after the insurance company is notified of the claim. This statement may include an offer under paragraph c.) contingent upon the owner accepting the carrier’s determination whether to make an additional payment of money.

An owner who receives a settlement offer must serve a written notice of acceptance or rejection within 45 days after receiving that offer. If the contractor, subcontractor, supplier of design professional either disputes the owner’s notice of claim or does not respond to it, the owner can, without any further notice, file a lawsuit or demand for arbitration, where applicable.

If a contractor, subcontractor, supplier or design professional is sued for alleged construction defects without the owner first providing any pre-suit notice, that contractor, subcontractor, supplier or design professional should immediately move to stay the lawsuit under Florida Statutes Sec. 558.003

]]>https://www.csrealconblog.com/2018/08/articles/construction/rights-remedies-procedures-addressing-construction-defect-claims-florida/feed/0New Jersey Opportunity Zones Provide Incentives to Investorshttps://www.csrealconblog.com/2018/07/articles/construction/land-use-and-development/new-jersey-opportunity-zones-provide-incentives-investors/
https://www.csrealconblog.com/2018/07/articles/construction/land-use-and-development/new-jersey-opportunity-zones-provide-incentives-investors/#respondThu, 19 Jul 2018 19:01:40 +0000https://www.csrealconblog.com/?p=1966The Opportunity Zone program enacted as part of the 2017 federal Tax Cuts and Jobs Act is designed to spark long-term capital investment into low-income and urban communities. The 169 Opportunity Zones (or tracts) designated in New Jersey by Governor Murphy are a complete game changer and contain attractive investment incentives for developers and investors.

Via the Opportunity Zone program, developers and investors can tap into and reinvest their unrealized capital gains without paying capital gains for a period of time, if at all. For example, capital gains invested or reinvested in an Opportunity Fund will receive a step up in basis of 10 percent if held for at least five years and by an additional 5 percent if held for at least 7 years, excluding up to 15 percent of the original gain from taxation.

An even greater savings is realized if the investment in the Opportunity Fund is held for at least 10 years. The gain accrued while invested is permanently excluded from taxable income of capital gains upon the sale or exchange of the investment.

With these tax incentives in place, Senator Corey Booker (NJ) believes the barriers between communities and the capital needed to generate economic growth and opportunity will be broken down.

The Opportunity Zones were designated based on key economic indicators in certain neighborhoods and communities such as income, unemployment rate and property values but also consideration was given to accessibility to mass transit and the value of existing investments. The 169 tracts were approved by the US Department of the Treasury on April 9, 2018. You can view the interactive map of designated Opportunity Zones for New Jersey by clicking here.

]]>https://www.csrealconblog.com/2018/07/articles/construction/land-use-and-development/new-jersey-opportunity-zones-provide-incentives-investors/feed/0Lien Rights of Contractors, Subcontractors and Suppliers of Materials Under Florida Lawhttps://www.csrealconblog.com/2018/07/articles/construction/lien-rights-contractors-subcontractors-suppliers-materials-florida-law/
https://www.csrealconblog.com/2018/07/articles/construction/lien-rights-contractors-subcontractors-suppliers-materials-florida-law/#respondMon, 16 Jul 2018 17:31:18 +0000https://www.csrealconblog.com/?p=1960Home renovations and repairs is big business in Florida, especially in densely populated south Florida where it seems that every available square foot of property is occupied by a residence or commercial building. That said, it is important to understand the lien rights of contractors, subcontractors and suppliers of materials under Florida law.

First, it is important to understand whether there is a difference between the lien rights of a company that has a contract with the owner of real property as opposed to a company that does not have such a contract. The prime example of the latter is a subcontractor or supplier of materials for the company that actually does have the contract with the homeowner. One who has a contract with an owner is said to be in privity with the owner, meaning the relationship between the two parties is recognized by law.

The short answer is that both those in privity and those not in privity with owners of real property have lien rights in that Florida Statutes Sec. 713.01 includes in its definition of lienors, contractors, subcontractors and those who contract with contractors and subcontractors. The means of perfecting or protecting those lien rights is, however, different.

As an example, let’s say a homeowner contracts with Company A to install a new roof on her property. The homeowner and Company A sign a clear, definite contract. Company A, in turn, contracts with Company B to supply it with all of the materials to install the roof. Company A and Company B have their own separate contracts, but there is no contract between the property owner and Company B.

Once the job is completed the owner refuses to pay the rather substantial balance that is due and owing to Company A. Company A, in turn, does not pay the balance that it owes to Company B. How do each of these respective companies perfect its lien rights on the owner’s real property?

For Company A, the process is quite simple. Under Florida Statutes Sec. 713.08, it must record a document known as a claim of lien in the county where the real property is located within 90 days of the last date that it provided labor, services or materials. The statute sets forth, in detail, what must be contained in that claim of lien, and the actual form is provided in Florida Statutes Sec. 713.08. Amongst other things, the claim of lien must include the name and address of Company A; the labor, services and materials that were furnished and the contract price or the value of what was provided; the name of the owner of the real property; a description of that real property; when labor, services and materials were first and last furnished; and the amount unpaid.

Company B’s ability to perfect its lien rights is a bit more involved. Although it, too, must record a claim of lien and comply with the requirements of Florida Statutes Sec. 713.08, it has an additional step it must take to ensure that its lien rights are protected. Pursuant to Florida Statutes Sec. 713.06, prior to furnishing materials or within 45 days of first furnishing such materials, it must serve the owner with a document known as a notice to owner. Again, the statute sets forth the actual form—which is quite brief and straightforward– that must be provided, and that form will contain Company B’s name and address, the description of the real property and a description of the materials that were supplied or are being supplied.